IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
John David Judy, III, Esq.
James
P. Geary, II, Esq.
Judy & Judy
Geary & Geary
Moorefield, West Virginia
Petersburg,
West Virginia
Attorney for Appellants
Attorney
for Appellees
The Opinion was delivered PER CURIAM.
2. “A
finding is clearly erroneous when, although there is evidence to support the
finding, the reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed. However, a reviewing court
may not overturn a finding simply because it would have decided the case differently,
and it must affirm a finding if the circuit court's account of the evidence is
plausible in light of the record viewed in its entirety.” Syllabus Point
1, In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).
Per Curiam:
The appellants Leland
and Betty Maxine Thorne appeal a circuit court order finding that
the appellants had a fourteen-foot-wide right-of-way, rather than a thirty-foot-
wide right-of-way across the appellees Richard and Terry Comer's property.
We find that the circuit court erred in limiting the Thornes to a fourteen-foot-wide
right-of-way and reverse the order, in part.
In 1993, the Sites sold .262 acres of their land that abutted the Thornes' property to the Thornes. Then in the late 1990's the Sites divided their remaining property into two separate parcels using the existing roadway as the boundary between the two parcels. The Sites sold one parcel to Mark M. Harman in 1997, (See footnote 3) and sold the other parcel to the appellees Richard and Terry Comer (“the Comers”) in 1999.
In both the 1997 deed and 1999 deed, the Sites reserved a thirty-foot-wide right-of-way across the Harman and the Comer properties, using the center of the roadway as the center line of the right-of-way.
The deeds state in pertinent part:
There is hereby excepted and
reserved to the Grantors and others having the right to use same, a
right-of-way, thirty feet in width . . . which right-of-way shall not be exclusive,
but shall be for the joint and common benefit of the Grantors, Grantees, their
respective heirs, successors and assigns, as well as others having the right
to use same.
(Emphasis added.)
Problems ensued between the
Comers and the Thornes. On April 7, 2003, the Thornes filed a petition seeking
injunctive relief and a restraining order against the Comers. The Thornes claimed,
among other allegations, that the Comers were impairing the Thornes' use of the
right-of-way by harassing the Thornes and their guests and by lining the edges
of the roadway/right-of-way with wooden posts, fencing, and debris.
The circuit court held a hearing on the Thornes' petition, at which the parties presented testimony and other evidence. On April 23, 2003, the circuit court entered an order. In the order, the circuit court finds that the Thornes had a fourteen-foot-wide right-of-way that stretched across the Harman and Comer properties to the public roadway. (See footnote 4) The circuit court found that “the center line of the roadway which provides access to the Thorne property . . . is the boundary line between the [Harman and Comer] propert[ies], and that there is a 30 foot right-of-way which was reserved from the [Harman and Comer] property to the public road[.]”
The circuit court further found that the Thornes' fourteen-foot-wide right-of- way was subsumed within the thirty-foot-wide right-of-way reserved by the Sites from the Comer and Harman properties, and that the Comer and Harman deeds had no bearing on the width of the Thornes' right-of-way. The circuit court also found that because the Sites' 1993 deed to the Thornes did not specifically grant the Thornes' property a right-of-way, the circuit court limited the Thornes to a fourteen-foot-wide right-of-way based on their customary usage of the existing right-of-way.
At issue is whether the circuit
court erred in limiting the Thornes to a fourteen- foot-wide right-of-way.
The Thornes argue
that the circuit court erred in finding that the Thornes were
limited to a fourteen-foot-wide right-of-way. The circuit court based its ruling,
in part, on the 1993 deed of a “quarter” acre of land from the Sites
to the Thrones. In the 1993 deed, the Sites did not reserve a specific right-of-way.
Because the 1993 deed did not reserve a right-of-way, the circuit court based
the width of the right-of-way on what the circuit court saw as
the Thornes' customary usage of the right-of-way. However, the 1993 deed has
minimal, if any, relationship to the right-of-way from the public road to the
Thornes' property. The failure to reserve a right-of-way in the 1993 deed is
not dispositive of the issue in this case.
The Thornes and their predecessors
have had a right-of-way across the Harman and Comer (formerly the Sites') property
since 1923. In 1993, when the Sites deeded the small piece of property to the
Thornes, only the Thornes used the right-of-way across the Sites' land. Later, when the Sites sold the remainder of their land, the
Sites were careful to reserve a thirty-foot-wide right-of-way _ not only
for “the Grantors,” but also for “others having the right
to use same.” The term “others having the right to use same” contained
in the Harman and Comer deeds clearly includes the Thornes and their successors. (See
footnote 5) The Thornes have the right to use the thirty-foot-wide
right-of-way across the property.
The Thornes may have historically
limited their use of the right-of-way to fourteen feet. However, limiting the
Thornes to a fourteen-foot-wide right-of-way while allowing “all others” use
of the thirty-foot-wide right-of-way is illogical and creates an unfair result.